UPDATE: No action today, via SCOTUSblog: #scotus did not act today on #ssm petitions. Could issue orders Mon, but Dec 7 more likely. 2 other grants, including gene patents.”

Today the U.S. Supreme Court will consider whether to hear the Proposition 8 Case (Hollingsworth v. Perry [formerly Perry v. Brown]). When Prop 8 passed in California in 2008, it halted the legal right of gay couples to marry in the state. It has been overturned in state and federal courts and now is before SCOTUS. Should it grant review the case, the Justices will go on to consider whether Prop 8 violates the 14th Amendment to the U.S. Constitution.

Many experts think the court will punt, allowing the February 2012 decision of the U.S. Court of Appeals for the 9th Circuit that struck down Proposition 8 to stand, ending marriage inequality in California — so same-sex unions can proceed. That of course, will leave all states without marriage equality– many with constitutional amendments in place — sh*t out of luck for now.

The Perry case, along with several cases challenging the federal Defense of Marriage Act (DOMA), have been distributed for discussion at the Justices’ private Conference scheduled for Friday, November 30, 2012

…The Perry case was filed on May 22, 2009, in Federal District Court on behalf of two California couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo. On February 7, 2012, the United States Court of Appeals for the Ninth Circuit issued a landmark ruling upholding the historic August 2010 decision of the Federal District Court that found Proposition 8 unconstitutional. On July 30, 2012, the proponents of Proposition 8 asked the Supreme Court to review the Ninth Circuit’s judgment. A request for Supreme Court review, known as a petition for a writ of certiorari, is only granted upon an affirmative vote of four Justices.

…The Supreme Court is expected to release an Order List with its decisions on cases it has granted or denied review from its November 30 Conference by Monday, December 3. In the event that the Court neither grants nor denies review in Perry by December 3, the Justices will discuss the case again at a future Conference.

And…

If the U.S. Supreme Court decides to hear our case for marriage equality, AFER’s distinguished co-counsel Ted Olson and David Boies will file written briefs and present oral argument in the spring. A final decision would likely be issued by June 2013.

If the Court decides not to hear our case, the Ninth Circuit decision that ruled Prop. 8 unconstitutional will be made permanent, with marriages starting as soon as the Ninth Circuit issues its mandate, likely within several days after the Supreme Court denies review.

***

Meanwhile, in Nevada, a federal trial court ruled that the state can, in fact, discriminate against gay and lesbian couples. Chris Geidner at Buzzfeed:

Judge Robert C. Jones, a George W. Bush appointee, found that the U.S. Constitution’s guarantee of equal protection of the laws does not “prohibit[] the People of the State of Nevada from maintaining statutes that reserve the institution of civil marriage to one-man–one-woman relationships.”

Jones ruled that prior Supreme Court precedent—a 1972 case, Baker v. Nelson, that denied a same-sex couple’s marriage claim as lacking any “substantial federal question”—controlled his decision. Even if not, he ruled that the “exclusion of same-sex couples from the institution of civil marriage” was constitutional “[b]ecause the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest.”

Apparently Jones thinks that marriage equality being affirmed in other states is meaningless — all the more reason why the U.S. Supreme Court will in the end provide the freedom to marry for states under the thumb of amendments, timid legislatures, and bigoted state courts.

Lambda Legal Staff Attorney Tara Borelli:

“This is not the end of this fight. We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.

“This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can. Not only is this not true, but it is settled law that the government is not allowed to cater to private biases – which is all that imagining that ‘some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.”

13 Responses
to “SCOTUS and marriage equality — will it punt today on taking the Prop 8 case? (w/UPDATE – No action.)”

I did a quick read-through of the opinion in the Nevada case — it’s junk. (Apparently, the wingnuts have the same attitude toward law that they do toward science.) Relying on Baker at this point is to confess to being completely out of touch with the jurisprudence in this area for the past ten years (at least) — or just wanting to avoid the issue altogether. I very much doubt it will stand up to review by the 9th Circuit.

While Chief Justice Roger B. Taney had hoped to settle issues related to slavery and Congressional authority by this decision, it aroused outrage and deepened sectional tensions. President Abraham Lincoln’s Emancipation Proclamation in 1863, and the post-Civil war Thirteenth, Fourteenth and Fifteenth amendments nullified the decision.

For many centuries, cohabitation was sufficient to indicate marriage. Then the church, and the state, got into the act in order to regulate human behavior. The state particularly had an interest in limiting marriage choices.

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

Now the courts are deciding who can marry. It’s unfortunate that we have to cede them this authority, and fret about the decisions they might make. It’s actually none of their damn business, and it’s too bad that we give in to them.

On most roads, nobody goes under the speed limit and so the cops can’t do anything about it. It just happens. Also we have a lot of people cohabitating now who don’t worry about licenses. It just happens, and the courts can’t do anything about it. People say, in effect: Take your “institution of civil marriage” and shove it. I’m not going to be institutionalized.

That totally eliminates the concern about “marriage equality.” We’ve come full circle when we do that, back where the human race was fifteen centuries ago. That’s progress, getting the government out if our lives. Church too.

The Legislatures were making decisions on who can marry & how a marriage is given legal effect.

Perhaps after we win marriage equality for LGBT’s, we can have the esoteric discussions about common law marriage (still in existence in 10 states) and other alternative. Until gays are protected in public life, we can’t afford the distractions.

The Court is not deciding who should marry. State legislatures decide that. Or rather, state legislatures decide whether the state recognizes a marriage for purposes of things like state tax, alimony on divorce, etc.

The Court is being asked whether a state’s already existing refusal to recognize same gender marriage violates the Constitution of the United States. That may seem the same on the surface, but it is very different.

The Court will probably say there is no Constitutional violation. Even so, the state legislature can change its mind and decide that it will recognize same gender marriage after all.

I am not at all sure you are correct about marriage being so simple 15 centuries ago. In ancient Greece, it wasn’t. But, let’s stick to the U.S. for now.

In your example of cohabitation = marriage, that was the state deciding that single people had no right to live together. By gum, if they were going to live together without getting hitched, they were still going to be liable for each other’s debts, for alimony if they separated, etc. That was pretty intrusive, too.

Moreover, the state still decided what constituted marriage, in this case, what constituted common law marriage. It was not simply living together. People had to refer to each other as spouses and otherwise show an intent to be treated by society as a married couple.

The state also decided what period of time they had to live together before they were considered married. Somewhere between a sleep over and forever, a line had to be drawn and it was each state that drew it, not the couple.

So, it was not all that different, just more complication and more litigation for each couple when creditors tried to hold someone liable or the woman sought alimony. (It was pretty much the woman in those days.)

America would have been divided over slavery, even if the SCOTUS has decided the Dred Scott case as it should have decided it.

The same for Plessy v. Ferguson and Jim Crow laws.

Hell, it’s divided over slavery and Jim Crow now. I’ve seen thugs post that we overlook the positive side of slavery.

And then there is the gender issue, huge in even the most recent election.

I hope the U.S.A. someday recovers from her original white male sins, as enshrined in her Constitution as originally adopted, but they have divided us since the first white person set foot on what is now U.S. soil.

P.S. In my prior reply, I did not mean to suggest that bigotry was the sole province of white men. There are all kinds of permutations and combinations of bigotry, including people being prejudiced against members of their own race or gender.

But, for the longest time, white men wrote this nation’s Constitution and her laws and judicial opinions and cast the votes.

This comes from the misconception that the government gives us civil rights via the Constitution. That’s wrong. If we rely on the Constitution to be a compendium of civil rights, or allow others to do so, we will be sorely disappointed. There was intense discussion about the inclusion of the Bill of Rights in the Constitution because while some feared a strong government and wanted a few basic rights emphasized, others wanted to avoid any enumeration of rights.

Neither Hamilton nor Madison originally wanted the Constitution to include a Bill of Rights, because they were concerned that any specific enumeration of rights might open the door to legal sophistries that could override an intuitive appeal to natural rights, and reduce the guarantee of rights to a set of narrow technicalities, meaningless in practice and understood only by lawyers. When Madison saw that the sentiment in favor of a Bill of Rights had become so overwhelming that it could not be forestalled, he insisted on writing it himself, and incorporating the Ninth and Tenth Amendments as a precaution against the adoption of narrow technical interpretations.

There’s no deeply inherent connection between the Constitution and civil rights. The Constitution proscribes the government from legislating against some rights, is all.

Our civil rights are inherent. If we depend upon the government to provide us our rights we are missing the intent of the Declaration of Independence and mortgaging our lives to the government, and you know how mortgages worked out.

The Suprene Court usually, mistakenly, takes the position that since issues like abortion and marriage are not addressed in the Constitution they should be left to the states to decide. The Supremes say, in effect, that natural inherent rights don’t exist, and that the states have the power to determine our rights.

The theory – perhaps by now it seems like a quaint anachronism – on which the nation was founded is, or was: Government is instituted to protect preexisting natural rights essential to the pursuit of happiness.

Sadly, Scalia is a specialist in answering the wrong questions. As I understand the way the cases have been framed, it’s not on the basis of whether there is “a right to same-sex marriage,” but on whether excluding one class of citizens from the ability to enter into marriage without a compelling state interest violates guarantees of due process and equal protection. On the face of it, that’s pretty clear-cut, particularly since none of the opponents of same-sex marriage have managed to come up with a “compelling state interest” that stands up, even under rational basis review.